Children from void, voidable marriages entitled to parents’ share in ancestral property: SC

A voidable marriage is one that is made invalid by the husband or wife through a decree. A void marriage is invalid at the very inception.

September 01, 2023 03:17 pm | Updated 06:32 pm IST - New Delhi

Supreme Court on September 1 held that children born out of “void or voidable” marriages are legitimate and can claim rights in parents’ properties under the Hindu Succession law. File

Supreme Court on September 1 held that children born out of “void or voidable” marriages are legitimate and can claim rights in parents’ properties under the Hindu Succession law. File | Photo Credit: Sushil Kumar Verma

The Supreme Court on September 1 held that a child born of a void or voidable marriage can inherit the parent’s share in a joint Hindu family property governed by the Mitakshara law.

A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud however clarified that such a child would not be entitled to rights in or to the property of any other person in the family.

A voidable marriage is one that is made invalid by the husband or wife through a decree. A void marriage is invalid at the very inception.

Mitakashara law of succession governing Hindu Undivided Families applies to the whole of India except West Bengal and Assam.

Chief Justice Chandrachud said the first step to inheritance of a child from a void or voidable marriage would be to ascertain the exact share of his parent in the ancestral property.

This could be done by means of conducting a “notional partition” of the ancestral property and calculating how much of the property the parent would have got immediately before his death.

“For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener (a person who acquires a legal right to his ancestral property through birth in a Hindu Undivided Family), the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener, namely, a partition of the coparcenary property between the deceased and the other members of the coparcenary,” Chief Justice Chandrachud, who authored the judgment, observed.

Once the share of the deceased parent in the property is ascertained through such a notional partition, his heirs, including his children by means of void or voidable marriage, would be entitled to their portions in the share.

“When the share of the deceased in the property that would be allotted to him if a partition had taken place immediately before his death is ascertained, his heirs, including children who have been conferred with legitimacy, will be entitled to their shares in the property which would have been allotted to the deceased on the notional partition,” Chief Justice Chandrachud held.

Explaining the judgment, the Chief Justice told the lawyers present in the case that “you will have to first ascertain the interest of the parent in the coparcenary property, and in that the children who are granted legitimacy will have their shares”.

The Chief Justice said that Section 16 of the Hindu Marriage Act has statutorily conferred legitimacy to children born out of void or voidable marriages.

In fact, Chief Justice Chandrachud pointed out that Section 16(3) stipulates that children from void and voidable marriages would have a right to their parents’ property.

The court said the intent of granting legitimacy to such children in the Hindu Marriage Act should also be reflected in the Hindu Succession Act, which governs inheritance. Children from void or voidable marriages come within the ambit of “legitimate kinship” and cannot be regarded as illegitimate by the Hindu Succession Act when it comes to inheritance.

The court also noted that after the enactment of the Hindu Succession (Amendment) Act, 2005, the share of a deceased person in a joint Hindu family governed by Mitakashara law can be devolved to his heirs by testamentary or intestate succession. Prior to the amendment, the devolution was only through survivorship. Besides, the amendment gave equal rights of succession to women as well as men.

The case before the three-judge Bench was focussed on an amended provision in the Hindu Marriage Act, Section 16(3). The case was referred to a larger Bench in 2011 after a Division Bench of the apex court refused to follow past precedents and championed the cause of children born out of illegitimate marriages.

“The birth of a child in such a relationship has to be viewed independently of the relationship of the parents. A child born in such a relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3),” the Division Bench of Justices (retired) GS Singhvi and AK Ganguly had written in their 2011 judgment in the Revanasidappa versus Mallikarjun case.

The Division Bench had held that such children would have a right to any property that belonged to their parents, whether they were self-acquired or ancestral. The Bench had however clarified that the children’s claims would be limited to the property of their parents and no other relation.

“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role,” Justice Ganguly, who authored the 2011 judgment, had observed.

During the hearings on the reference, Chief Justice Chandrachud had agreed with the Division Bench’s findings that children from void and voidable marriages had rights over the property, whether self-acquired or ancestral, of their parents.

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